Jose Luis Magana/AP Photo
People protest in support of affirmative action in university admissions, June 29, 2023, outside the Supreme Court in Washington.
The Supreme Court decisions striking down the use of race in university admissions close an era that began about a half-century ago. What remains to be decided is whether the Court’s rulings open a new era of affirmative action that serves many of the same purposes but enjoys more political support and a stronger legal defense.
When the Supreme Court decided Dobbs v. Jackson last year, it threw abortion into the political arena and awakened a popular reaction in favor of reproductive rights, which in time may effectively reverse the Court’s decision. The Court’s rulings on race-based affirmative action at the University of North Carolina and Harvard are unlikely to lead to an analogous political response.
The UNC decision is based on constitutional law, and no constitutional amendment will be enacted to overturn it. The Harvard decision is based on the Civil Rights Act, and there is unlikely to be any effort to revise civil rights law to enable private universities to use race in admissions because a large majority of the public opposes that policy. That opposition should be abundantly clear after blue-state California voters in 2020 soundly defeated a ballot measure that would have restored race-based affirmative action in that state after voters eliminated it in 1996.
This is the political reality: For now and probably a long time to come, all the political routes to restoring race-based affirmative action—through the courts, legislatures, and popular referenda—have been cut off.
But this is also the reality: Universities—their leaders, faculty, and students—are strongly committed to racial and ethnic diversity. They believe diversity is essential to the mission of higher education and the future of the nation. At the core of their commitment is the recognition of the historical and continued exclusion of Black Americans from equality in education and other institutions crucial in shaping the nation’s collective life. No law obligated the universities to pursue diversity; previous decisions by the Court only allowed them to pursue it.
The question now is whether there is a legally and politically sustainable substitute for race-based affirmative action: Can universities effectively pursue the goals of equality, diversity, and justice within the latest constraints set by the Court? In fact, a great deal can be done, especially if people stop looking for a single answer and think instead of multiple strategies that can contribute to wider educational opportunity for Black Americans and others historically excluded from higher education and still likely to be underrepresented if universities simply abandon race-based affirmative action and do nothing else.
President Biden’s mention of “adversity” in his comments on the Court’s decision is one key to a new and more politically defensible form of affirmative action. “Students first have to be qualified applicants,” Biden said, but “once that test is met, then adversity should be considered, including a student’s lack of financial means … The kid who faced tougher challenges has demonstrated more grit, more determination, and that should be a factor that colleges should take into account.”
That is exactly right. Overcoming adversity is a demonstration of ability. The consideration of adversity is not a violation of the idea of merit; it is a more complete understanding of the abilities that matter in life. It fits entirely with the university’s proper interest in identifying a student’s potential for achievement. Adversity-based affirmative action, or perhaps just adversity action, might be a good name for the alternative Biden was highlighting.
The consideration of adversity is not a violation of the idea of merit; it is a more complete understanding of the abilities that matter in life.
Adversity may take many forms, including being subject to discrimination and encountering many of the problems like housing insecurity and underresourced schools that are correlated with race. Nothing will prevent universities from taking those sources of adversity into account as long as they do not use race per se as a factor in selecting students.
For a while in 2018-2019, the College Board experimented with an “adversity score” for students taking the SAT, an adjustment based on public data about the neighborhoods they came from. The idea was to help universities identify “strivers” who scored significantly higher than environmental factors predicted, but it looked to many like a highly imperfect effort to salvage the SAT at a time when universities were moving away from it. In the face of protests, the College Board gave up on the idea, but its failure to develop an adversity index shouldn’t be the last word. Universities can use information about an individual applicant and the applicant’s family, not just the applicant’s neighborhood, as part of a more holistic evaluation that takes adversity into account. One example now getting attention is the socioeconomic disadvantage scale used in admissions by the medical school at the University of California, Davis.
Economic adversity—based specifically on low family wealth—has been the focus of much of the discussion about alternatives to race-based affirmative action. Progressive critics of the idea such as Richard Rothstein, a frequent contributor to the Prospect, have argued that class- or wealth-based affirmative action is unlikely to produce the same yield in Black and Hispanic students as race-based admissions. That may be true, but in the wake of the Supreme Court rulings, it is no longer the relevant comparison. It also ignores the moral and political case for addressing other sources of disadvantage besides race in university admissions. Decisions that factor in economic and other forms of adversity will survive the Court’s strict scrutiny, and even if they cannot fully offset the end of race-based affirmative action, they can significantly compensate for it.
From a university’s standpoint, the chief drawback of adversity-based admissions is that they would be more costly in two senses. Universities would be accepting more white students from families with low wealth and income, not just more Black and Hispanic students (which is why the new policies would have a stronger legal foundation). Adversity-based admissions would boost the percentage of Black and Hispanic students overall, but the effect would be even greater on the total number of students requiring financial aid and arriving in college with relatively less academic preparation. So budgets for financial aid and other forms of assistance would go up, while academic selectivity would go down.
Universities with enormous endowments like Harvard and Princeton can afford the financial costs, and it would be no great tragedy if they have to drop from the 99th to the 98th percentile in selectivity. But liberal arts colleges and other institutions would have difficulty managing the costs, though there is an adjustment they could make.
That adjustment would be to take more students transferring from community colleges—not just a token few, but a substantial portion of what would be their graduating classes. Community colleges not only ease the financial burden on students and their families; they would also ease the burden on four-year colleges and universities in seeing the students through to a four-year degree. Transfer students do require supportive services, but they’re crucial to a more affordable path to adversity-based affirmative action.
Private foundations and other donors could also help finance an institution’s transition to more costly adversity-based policies. If they supported programs for racial diversity, they should understand the imperative to pursue diversity on a broader, race-neutral basis.
It’s important to keep in mind how many students have been at issue in this debate. The New York Times cites Stanford University’s Sean Reardon, one of the leading sociologists of education, as estimating that about 10,000 to 15,000 students graduate annually from selective universities who might not have been accepted without race-conscious admissions. That’s only about 2 percent of the total number of Black, Hispanic, and Native American students in four-year colleges.
Reardon’s estimate suggests two conclusions. First, compensating for the end of race-based affirmative action is not a financially impractical goal. Even if adversity-based admissions increase the number of students requiring financial aid, the national cost should be well within the means of private philanthropy and university endowments, together with existing public programs.
Second, race-based affirmative action has affected only a very small percentage of underrepresented minorities attending college or aspiring to higher education. It has been a limited policy, successful primarily in diversifying the nation’s elite and the professions—important goals, but not the same as closing overall gaps in higher education. If universities are constrained in their admissions policies, they still have many other ways to contribute to wider educational opportunity and racial justice.
In the cases just decided by the Supreme Court, the dissents by Justices Sonia Sotomayor and Ketanji Brown Jackson are almost exclusively about Black-white inequality and its systemic basis. If you read their dissents and knew nothing else about affirmative action, you might think it was exclusively aimed at raising the representation of Black students in universities. As I suggested, the commitments to diversity in higher education arise above all for that reason.
In that light, the nation’s leading universities, with endowments in the billions of dollars, ought to be thinking about other ways they could legally advance the educational interests of Black Americans. One way might be through partnerships with institutions that serve the Black community. They could not just recruit from high schools and community colleges with large numbers of Black students; they could also provide resources and work closely with the schools in preparing the students. In addition, they could build up joint programs and degrees with the historically Black colleges and universities.
In his majority opinion, Chief Justice John Roberts wrote, “Universities may not simply establish through application essays or other means the regime we hold unlawful today.” Nothing I am suggesting would re-establish the “regime” the Court was prohibiting: the use of racial classifications in admissions. Adversity-based affirmative action would mean admitting more students of all races—white and Asian, Black, Hispanic, and Native American—who pass a threshold for admission despite the adversities they have faced. Partnerships with high schools, community colleges, and HBCUs are entirely within the discretion of universities.
Rothstein argues that because class-based affirmative action is insufficient, universities should just defy the Court, continue to use race-based admissions, and “accept legal consequences for their civil disobedience.” But no university is going to engage in civil disobedience, and surreptitious defiance is not likely to end well. The menu of alternatives I am proposing is a more practical response to the Court.
During the debate about race-based affirmative action, many people defending it said there was no substitute. That was understandable as a defense, but now that race-conscious admissions have been overturned, the effort should be to make the best of the situation. If universities and other institutions respond constructively, they may be able to find ways not just to offset the Court’s decision but to do even better. The Court has the final word on the law. Those who are committed to the purposes of affirmative action can still have the final word on what happens as a result.
